Lawyer Prashant Bhushan, one of the petitioners seeking a review of the deal, has argued that the Rafale deal is not a govt-to-govt contract since France didn't extend a sovereign guarantee.

New Delhi: The Supreme Court Thursday said it will decide first on the preliminary objections raised by the Centre and then go into the facts of the Rafale fighter jet deal case.

A bench headed by Chief Justice Ranjan Gogoi wrapped up the hearing on preliminary objections by the Centre that review petitioners in the Rafale jet deal case cannot rely on privileged documents obtained illegally.

It will be known later as to when the order will be pronounced on the issue.

The top court asked the petitioners seeking review of its order to focus on the preliminary objections regarding admissibility of the leaked documents.

“Only after we decide the preliminary objection raised by the Centre, we will go into the facts of the case,” said the bench, also comprising Justices S K Kaul and K M Joseph.

At the outset, Attorney General K K Venugopal, appearing for the Centre, claimed privilege over documents pertaining to the Rafale fighter jet deal with France and told the Supreme Court that no one can produce them in the court without the permission of the department concerned.

Venugopal referred to section 123 of the Evidence Act and provisions of RTI Act to buttress his claim.

He told the top court that no one can publish documents which relate to national security as the security of the State supercedes everything.

Advocate Prashant Bhushan, one of the petitioners seeking review, opposed the submission and said that the Rafale deal documents, which AG says are privileged, have been published and are already in public domain.

Former Union minister Arun Shourie, who is one of the review petitioners, submitted that he was thankful to the Centre and the Attorney General for saying in their affidavit that these are photocopies, proving the genuineness of these documents.

Bhushan further said that provisions of RTI Act say public interest outweighs other things and no privilege can be claimed except for documents which pertain to intelligence agencies.

There is no government-to-government contract in purchasing Rafale jets as there is no sovereign guarantee extended to India by France in the Rs 58,000 crore deal, Bhushan said.

He also said the Press Council of India Act provides provisions for protecting sources of journalists.

Senior advocate Vikas Singh, appearing for another petitioner Vineet Dhanda, said that the government cannot claim privilege on these documents.

Yashwant Sinha, another former Union minister, is also a petitioner seeking review of the Supreme Court verdict of December 14 which held that there was no occasion to really doubt the decision making process warrenting setting aside of the defence contract for purchase of 36 Rafale fighter jets from France.

2 COMMENTS

The government stand is disappointing. It is a technical defence, which may not work. The government , since the beginning, has needlessly taken stand that arouses unwarranted suspicion and doubts. Instead, they should fight the case on facts as revealed in the CAG Report. Whereas the petitioners may produce documents selectively t suit their convenience, the CAG report tells the story in its entirety. Most of the objections raised in the Hindu articles lack any substance and simply presents the minority view in the Indian Negotiating Team (INT). That the minority view was not accepted cannot be construed as a scam. Many of the arguments put forth by the petitioners exaggerations. To cite an example, Bhushan, the counsel of petitioners argued ” There is no government-to-government contract in purchasing Rafale jets as there is no sovereign guarantee extended to India by France in the Rs 58,000 crore deal, “. This is simply not true. Several big-ticket purchases by the three service arms do not have either an integrity clause or a sovereign guarantee. For instance, the Manmohan Singh led UPA-government negotiated the purchase of heavy lift transporters from the US through the Foreign Direct Sale route (FMS) that did not have an integrity clause or a sovereign guarantee, one of the officials said. The 10 C-17 strategic lift aircraft cost the exchequer $ 4.1 Bn. Similarly, the six US-made C-130 heavy lift aircraft bought in 2010 for $ 1bn came without any integrity clause or sovereign guarantee. Similarly, equipment and hardware from Russia, too, come without either of these. The Su-30Mki – the current frontline fighters – bought in the 1990s and early 2000 came without these, Air Marshal SBP Sinha, who headed the team that negotiated the Rafale deal had confirmed to news agency ANI that previous government-to-government contracts with Russia and the United States do not have the anti-corruption clause. My advice to the government- argue the case based on facts and don’t hide behind technicalities.

Actually this case of Rafale Deal need not have gone SC, had the govt relented and maintained transparency in the negotiations. When almost every fact of the deal is in public domain, there is no reason for evoking privilege issue.